Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content

from the unrelated-to-creativity dept

Matt Schruers, over at the Disruptive Competition Project blog has a great post discussing the harm of the increasing pressure to abuse intellectual property law to do a variety of things that it was clearly never intended for. He calls this intellectual property's "immigration" challenge, noting that these uses have "at best, a tenuous relationship to 'promot[ing]... Progress.'" Why "immigration"? Plaintiffs are jumping into the copyright realm because it's more appealing than laws in other areas, even if what they're seeking to do has nothing to do with copyright. One popular misuse of copyright law these days is as an alternative means of dealing with revenge porn. You can understand why people gravitate to this tool -- especially when there appear to be limited other tools for dealing with such sites. But can anyone explain what using copyright to takedown revenge porn has to do with promoting the creation of new works?

As Schruers notes, a big part of the issue is that copyright law comes with such a giant club in the form of statutory damages, which make it quite a powerful tool in censoring content:

What is happening is that plaintiffs are migrating into IP territory. Why? In a word: remedies. When testifying before Congress on this subject in July, I briefly noted that IP remedies are so attractive that they attract plaintiffs from other areas of the law. Rather than forum-shop, potential plaintiffs jurisprudence-shop. Claimants come to IP seeking redress for concerns that they cannot vindicate elsewhere. In the physical world, immigration is usually an indication that the destination is more attractive. In fact, a large amount of migration occurs in search of better conditions, or opportunities, and the anecdotal evidence suggests that this “remedy immigration” is no different.

When it comes to remedies, intellectual property is the land of opportunity. Robust injunctions, sweeping doctrines of secondary liability allowing recourse against parties other than the wrongdoer, statutory damages, and the availability of rapid DMCA takedowns all encourage plaintiffs to reframe various misdeeds (or perceived misdeeds) as infringement complaints. In a world with a general uniformity of remedies, there would be little reason for plaintiffs to seek out greener pastures, but when the remedies are unmistakably stronger in another area of law, plaintiffs have a natural incentive to reframe their claims to take advantage of them.

He goes on to discuss the use of copyright law against revenge porn and the recent "celeb leaks," noting that many of the photos in question aren't really good targets for copyright law, since many are taken by others (selfies are the exception, generally). He compares that to the Garcia case, in which an actress was able to take down the entire (controversial) "Innocence of Muslims" video based on a highly questionable copyright claim. He compares that to another case, Monge v. Maya Magazines, in which a celebrity sought to suppress images of her secret wedding (which she did not take).

Both Monge and Garcia represent efforts to use post hoc IP claims to suppress information from the public. While the circumstances may make for sympathetic plaintiffs, no one seriously thinks the litigation is about authorship. This is why it is so odd that the weapon of choice to suppress content is a statute aimed, ironically, at encouraging publication.

Again, one can (and many probably will) argue that they sympathize with the folks making use of copyright in this manner. Perhaps because they are troubled by the situations all of them find themselves in, and the lack of what they feel to be appropriate remedies. But it's quite clear that copyright in these cases is being used for things that have nothing to actually do with copyright. If we want our public policy to work properly, part of that has to involve making sure that we don't twist and turn laws to cover things they should not.

A big part of the issue, frankly, goes beyond just the remedies aspect that Schruers highlights. It has to do with the fact that copyright has long been viewed as a First Amendment work-around. The conflict between copyright and the First Amendment is undeniable -- in fact, whole books have been written about it. Historically, the courts have brushed off these concerns however, arguing that things like "fair use" create a "safety valve." But what's really happening here is that people are recognizing a tool that has been effectively blessed as a "legal" way to get around the First Amendment and use the law to censor content they wish to suppress. People can argue over whether or not it's appropriate to suppress that material, but everyone should at least be willing to admit that copyright should be the wrong tool for this sort of thing no matter what.